A three-judge panel sitting for the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] Thursday that immigrants who are imprisoned while fighting deportation cannot be held indefinitely without a bail hearing and that the government must justify the need for the prolonged detention. The ruling came in an appeal of a district court decision brought by Senegalese native Cheikh Diop who was detained for two years and 11 months pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) [8 USC § 1226]. IIRIRA requires that any immigrant who has committed a crime involving "moral turpitude" or a crime involving a controlled substance be taken into custody pending removal. Diop was detained on the basis of a 2005 conviction in state court for reckless endangerment and on a 1995 conviction for possession of a controlled substance. The court acknowledged that the statute does not provide for the possibility of release on bond and does not require the government to justify the detention, but ruled that because it is presumed that Congress does not intend to pass unconstitutional laws, "the statute implicitly authorizes detention for a reasonable amount of time, after which the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute's purposes." The court also ruled that:

In this case, there can be no question that Diop's detention for nearly three years without further inquiry into whether it was necessary to ensure his appearance at the removal proceedings or to prevent a risk of danger to the community, was unreasonable and, therefore, a violation of the Due Process Clause.

Diop was released in February after numerous court appearances. During the court proceedings surrounding Diop's case, it was determined that his 2005 conviction was not serious enough to fall under the statute, and his 1995 conviction was vacated in light of the US Supreme Court [official website] ruling [opinion, PDF] in Padilla v. Kentucky [JURIST report]. The American Civil Liberties Union (ACLU) [advocacy website], which submitted a brief on behalf of Diop as amicus curiae, praised the ruling [press release] and urged the US government to use the ruling as a basis for changing current detention practices.

The US government has faced criticism over the immigrant detention system. In March, the Inter-American Commission on Human Rights (IACH) [official website] released a report detailing investigations into immigrant detention centers [JURIST report]. The report expressed concern over increased use of detention by the US government, citing a doubling in detention of non-citizens by the US Immigration and Customs Enforcement (ICE) [official website]. It criticized the US government for viewing detention as a necessity and not as an exception in its enforcement. IACH also found the average 30 day detentions troubling, arguing that it is likely to increase as backlogs of immigration cases increase. The number of immigration cases pending is expected to rise in light of the numerous state laws that have been enacted to address the issue of immigration. Absent comprehensive immigration reform at the federal level, several states including Arizona, Georgia, Alabama, Indiana and Utah [JURIST reports] have passed legislation aimed at addressing the issue of illegal immigration [JURIST news archive].

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